Vehicle taking, temporarily or permanently
Aggravated Felony (AF)
To surely avoid an AF as obstruction of justice or theft, get 364 days or less on each count, but see Advice. See § N.4 Sentence.
If 1 yr cannot be avoided, or was imposed on a prior, see Advice and plead to “accessory after the fact” rather than a taking.
Crime Involving Moral Turpitude (CIMT)
Never a CIMT regardless of info in the ROC.1CIMT: The minimum conduct to commit § 10851 is a taking with intent to temporarily deprive, and that conduct is not a CIMT. Because § 10851 is not divisible under the categorical approach, no conviction of 10851 is a CIMT for any immigration purpose, regardless of information in the record. Almanza-Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016) (en banc).
This is not changed by BIA precedent that expands the definition of theft as a CIMT to include not only permanently, but “substantially” depriving the person of ownership benefits, by depriving the owner for a long time. The BIA acknowledges that joyriding (which includes depriving property for a few hours or days and is covered by § 10851) does not meet that new definition. Matter of Diaz-Lizarraga, 26 I&N Dec. 847, 850-51and n. 10 (BIA 2016); Matter of Obeya, 26 I&N Dec. 856 (BIA 2016). (Note that the new standard articulated in Diaz-Lizarraga and Obeya does not apply retroactively to convictions received before their publication date, which was November 16, 2016. Garcia-Martinez v. Sessions, 886 F.3d 1291, 1292 (9th Cir. 2018).)
But to give D extra protection, try to make a specific plea to intent to deprive temporarily.
Other Removal Grounds
No other removal ground.
Advice and Comments
AF. See citations and further discussion here.2AF. This section provides citations and further discussion, and will be of most use to advocates who need to make the argument that a § 10851 conviction with a year imposed is not an AF under any definition, or who just want to understand the underlying issues. Some of these issues involve the categorical approach, which is discussed further at n. 4, above.
The definition of AF includes “theft” (taking property without consent) and “obstruction of justice” (interference with certain kinds of government action), in each case only if a sentence of a year or more is imposed. See 8 USC § 1101(a)(43)(G), (S). A taking under § 10851 meets the definition of “theft” and is an AF with a sentence of a year. (Remember that this is regardless of whether the intent is to deprive temporarily or permanently; temporary intent pertains to CIMTs, not to an AF.)
However, § 10851 also criminalizes accessory after the fact to the theft. Accessory after the fact is not “theft,” and the Ninth Circuit further held that accessory after the fact under Pen C 32 is not “obstruction of justice.” See Valenzuela Gallardo II, discussed below. There still is uncertainty about two issues. First, at this writing, Valenzuela Gallardo II still could be taken up en banc and potentially reversed. Second, § 10851 ought to be found not divisible between theft and accessory, but an en banc hearing would be required to obtain that holding; until then it will be considered divisible between theft and accessory in the Ninth Circuit.
Section 10851 includes accessory after the fact; divisibility issue. In 2007 the Ninth Circuit en banc decided United States v. Vidal, 504 F.3d 1072, (9th Cir. 2007) (en banc), on remand after Duenas-Alvarez. Vidal involved a conviction of § 10851 where a year or more had been imposed. In a split decision, the court found that the term “an accessory” in § 10851 refers to an accessory after the fact, like Pen C § 32. Id. at 1077-86, The court found that the inclusion of “accessory” in the text of § 10851 fulfills the “realistic probability of prosecution” requirement set out in Duenas-Alvarez. Id. at 1082. The court held that accessory under § 10851 does not come within the definition of “theft,” which was the only AF category that the government had charged (i.e., it had not charged that 10851 also is an AF as obstruction of justice). It reviewed the record of conviction under the modified categorical approach (i.e., treated § 10851 as a divisible offense) and found that the record was inconclusive. Id. at 1086-90.
Ten years later, in United States v Arriaga-Pinon, 852 F.3d 1195 (9th Cir 2017) the court considered a very similar case: a § 10851 conviction with a sentence of a year or more, that was charged as an AF only as theft, and that involved a record of conviction similar to the one in Vidal. The court followed Vidal and held that 10851 is divisible between theft and accessory, and that the record in the case was inconclusive. But it noted that, based on Supreme Court precedent subsequent to Vidal, such as Mathis, § 10851 ought to be found indivisible between theft and accessory. ,. However, the majority of the three-judge panel concluded they did not have authority to overrule Vidal and find that § 10851 is indivisible. See Arriaga-Pinon, concurrence by Chief Judge Thomas. Therefore, it appears that it will take an en banc or a Supreme Court ruling to get a finding that §10851 is indivisible between a taking and accessory. If accessory continues to be held not to be obstruction (see below), and if sometime in the future an en banc panel finds that § 10851 is held not to be divisible between theft and accessory, then no conviction of § 10851 will be an AF, even with a sentence of a year or more. Meanwhile, it is critical for defenders (1) to try to avoid a sentence of a year or more on a § 10851, and (2) if that is not possible, to plead specifically to accessory.
10851 accessory as obstruction of justice. DHS may start to charge accessory after the fact under § 10851 as an AF as obstruction of justice, if a year or more is imposed. See 8 USC § 1101(a)(43)(S). If that charge were upheld, then the BIA would likely say that every § 10851conviction with a sentence of a year or more is an AF, because every offense would have to involve either theft (if vehicle-taking) or obstruction (if accessory). See, e.g., discussion in Matter of Reyes, 28 I&N Dec. 52 (AG 2020) (if all means to commit an offense comes within either of two aggravated felony categories, the offense is an aggravated felony.)
The BIA and Ninth Circuit have disagreed in multiple cases about the correct generic definition of obstruction of justice, in the context of Pen C § 32. Significantly, in August 2020 the Ninth Circuit rejected the BIA’s claim and held that Pen C § 32 is not obstruction of justice. See Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020) (“Valenzuela Gallardo II”), discussed at Pen C 32 Advice and endnotes, above. In brief, Valenzuela Gallardo II holds that obstruction is limited to interference with an existing investigation or proceeding, and does not include, e.g., interference with an initial arrest where there is not yet any investigation or proceeding. Accessory after the fact under Pen C 32 does include such an arrest, and the panel held that it is overbroad and indivisible as obstruction. Any ruling on obstruction that applies to Pen C 32 also should apply to accessory under § 10851, so this is good news. The risk is that as of October 2020, it still is possible that Valenzuela Gallardo II would be reheard en banc, so we cannot rely entirely on the decision. This is why we ask defenders to seek a sentence of 364 days or less, which in all cases will prevent a § 10851 conviction from being an AF.
Immigration advocates who have to defend an existing § 10851 with a year imposed will argue that accessory under § 10851 is not obstruction of justice, citing Valenzuela Gallardo II. If needed, they also can argue that § 10851 is not divisible between vehicle taking and accessory, and preserve this issue for a future en banc hearing. But because it may be held divisible, carefully read Vidal and Arriaga-Pinon to see how the courts found the record to be inconclusive. As always, advocates should investigate other defense strategies, such as the possibility of post-conviction relief, at the same time they are litigating the issue.
Both theft and obstruction of justice are AFs if a year or more is imposed. 8 USC 1101(a)(43)(G), (S). Avoiding a year (which includes added time on a PV) will prevent an AF. In case there is a year:
A taking under 10851 is an AF as theft, but 10851 also includes accessory after the fact. Accessory is not “theft” but ICE may argue it is “obstruction.” In August 2020 the Ninth Circuit held that PC 32 accessory after the fact is not an AF as obstruction; see PC 32 Advice above, re Valenzuela Gallardo II. A holding on PC 32 should apply equally to accessory under 10851. However, a petition for rehearing en banc is pending in the case, so defenders should continue to act conservatively and seek 364 days or less.
Assuming 10851 accessory is not an AF with a year, but 10851 taking is, is 10851 divisible between these two? Under the categorical approach and Mathis, 10851 should not be held divisible. However, an older, pre-Mathis case held that it is divisible, and a panel held that a Ninth Circuit en banc decision will be required to reverse this. Therefore defenders are strongly urged to plead specifically to accessory; second best is to create an inconclusive record; and try to avoid a plea to taking. See discussion of divisible statutes and creating a record of conviction at n. 4.
Immigration advocates in removal proceedings will assert (1) that 10851 accessory is not obstruction, citing Valenzuela Gallardo II, and (2) if needed argue that 10851 is indivisible, and preserve the argument until we can get an en banc ruling.